Alberta judge rejects trial delay argument in Calgary swarming death case

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A Calgary judge has sent a message to defence lawyers that throwing out murder charges and other serious accusations over long court delays should be a rare event.

Justice Glen Poelman of the Alberta Court of Queen's Bench upheld murder and manslaughter convictions for three men who had argued that the charges should be thrown out because it took 31 months from the time they were charged in 2013 until they were convicted this past June. The Supreme Court, in a ruling in July, set 30 months as the deadline for trial completion from the time a charge is laid in superior court (after deducting for delay caused by the defence).

This fall, lower-court judges threw out charges of first-degree murder in two cases, one in Alberta and one in Ontario, over excessive delay. But in refusing to do the same in the killing of an 18-year-old in a vicious "swarming" death, Justice Poelman said the Supreme Court ruling allows for broad exceptions for cases already in the system before the 30-month deadline was set.

These exceptions, he said, exist for serious offences, such as murder, for cases of moderate complexity in jurisdictions where courts are lacking in resources, and for those cases in which a prosecutor reasonably relied on the rules as they were.

"The offences tried in this case were very serious," he wrote, adding, "there was no time to adapt … because the period measured by the ceiling (charge to verdict) had already expired when the decision came out."

The ruling could help reduce the pressure on prosecutors in Alberta and other provinces scrambling to meet the deadlines imposed by the Supreme Court for timely justice.

In June, a jury found Franz Emir Cabrera and Assmar Ryiad Shlah guilty of second-degree murder while Joch Pouk was convicted of manslaughter. The three men killed an 18-year-old, Lukas Strasser-Hird, in November, 2013, outside a Calgary bar.

Lisa Silver, a criminal-law specialist at the University of Calgary law school, said the ruling affirms that cases already in the system may be assessed under somewhat different rules, depending on the circumstances. She also said it recognizes that Alberta "continues to work with limited resources. This is an important message for the federal government who, as yet, still has not appointed the full complement of justices for Alberta."

Justice Poelman pointed to a shortage of judges in Alberta as part of the reason for allowing the convictions to stand. "Alberta is notorious as suffering from inadequate judicial resources for its population," he wrote.

In October, the Court of Queen's Bench had seven vacancies and 59 full-time judges. The time to book a court for a trial of five days or more was 138 weeks. The federal government has since appointed five judges to that court, while promoting two to the Court of Appeal, for a net gain of three.

Mr. Shlah's lawyer, Balfour Der, took issue with the judge's comments on an exception for serious cases. "We don't get to cut out somebody's rights because it is a murder charge as opposed to a speeding ticket. These rules apply to everybody," he told reporters.

He said he will challenge Thursday's ruling on the basis that there was no preliminary inquiry, and that the time limit should therefore have been the same as in provincial court – 18 months, instead of 30. "We're saying the 18-month ceiling that the Supreme Court of Canada came up with for one-step proceedings should have applied in our case."

But Justice Poelman rejected that argument in his ruling, saying the Supreme Court "sought to avoid unpredictability, confusion and complexity" with its deadlines.

Prosecutor Ken McCaffrey said he was pleased by the ruling. "Now we can get on to the business of deciding the fate of these three men who committed this crime." For second-degree murder, a lifetime sentence is automatic, with parole eligibility to be set at anywhere from 10 to 25 years. For manslaughter, the maximum penalty is life in prison.

The three convicted men appeared before a full courtroom and were detained after the judge's ruling. Sentencing submissions, including victim impact statements, will be presented in court in January. Ten people will file statements, including the deceased's mother and grandmother. Their statements will be delivered via video link from Bolivia.